Warner sues “playable search engine,” tests DMCA safe harbor

Warner Bros. has filed a federal lawsuit against music search engine SeeqPod. …

Warner Bros. Records has launched a lawsuit against music search engine SeeqPod in a case with plenty of similarities to what's going on over the sea with The Pirate Bay. Both sites dig up plenty of copyrighted works, and both claim not to be liable for any infringement due to the fact that they merely point to other files on the Internet (neither hosts content directly). Warner doesn't see it that way, though, and its federal case against SeeqPod bills the company as an "unlawful music service that directly engages in, encourages, and facilitates the mass infringement of Plaintiffs' and other intellectual property owners' copyrighted works."

SeeqPod's name borders on the ridiculous, but its core product is compelling. It allows users to scour the 'Net for music, turn the tracks it finds into audio streams, and listen right from the browser. It also supports playlist creation and sharing, and the site makes no effort to filter out illicit copyrighted content. Type in "Beatles Norwegian" and you'll be humming along to "Norwegian Wood" in seconds.

Last.fm and Imeem offer streaming services that are similar in some ways, but both companies have signed licensing deals with copyright owners that allow them to use the music (which is paid for with advertising). SeeqPod has no such agreement and is counting on protection under the DMCA's "safe harbor" provision to protect it. So long as the infringing content is not hosted by SeeqPod, the company appears to believe that it is in the clear.

The safe harbor principle is the same one that prevents major search engines from being sued every time they link to illegal information or content (though it hasn't prevented porn purveyor Perfect 10 from going after both Google and Microsoft over the use of its thumbnails). Under the DMCA, service providers who qualify for safe harbor must be notified through a "notice and takedown" system rather than being sued in court.

The SeeqPod case goes to the heart of that claim, with Warner clearly suggesting that search engines like SeeqPod don't qualify. The EFF's Fred von Lohmann says that "defendants are complying with the letter of the law, but copyright owners are now trying to change the rules in court."

Warner disagrees, and though SeeqPod has only been live since May 2007, it's already facing charges of both direct and secondary infringement along with potential penalties of up to $150,000 per song. (Interesting side note: the first screenshot included in the complaint shows SeeqPod returning this bizarre result for Van Halen's "Jump" (MP3); you can thank me in the comments.)

The issues raised in this case and others like the Viacom case against YouTube should help to define safe harbor protections in a robust way over the next few years; until the issue is cleared up, though, companies like SeeqPod could be in for a bruising legal battle. Some will likely not survive.